CENTENNIAL — Attorneys for Aurora theater shooting suspect James Holmes say Holmes needs more time before entering a formal plea in the case.

On Thursday, 18th Judicial District Chief Judge William Sylvester said there is enough evidence for Holmes to face trial on 166 counts of murder, attempted murder and other offenses in connection with the July 20 attack at the Century Aurora 16 theater. Sylvester set an arraignment hearing — at which Holmes would have to enter a plea — for Friday at 9 a.m.

But in a filing Thursday,
Holmes' attorneys said they aren't prepared for arraignment. They will likely ask in court Friday to delay the proceeding.

The judge's ruling was largely a foregone conclusion, after prosecutors presented three days' worth of evidence this week meticulously connecting Holmes to the July 20 shootings that killed 12 and wounded 58 more by gunfire.

That evidence — which included pictures of a smiling Holmes posing with the guns police say were used in the shooting — is also widely seen as giving Holmes' attorneys only one path forward: A plea of not guilty by reason of insanity.

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"It is a plea of last resort," said Dr. Robert Fairbairn, a retired forensic psychiatrist who has conducted thousands of mental-health evaluations on criminal defendants, including Colorado death row inmate Nathan Dunlap.

Criminal defendants in Colorado can withdraw an insanity plea at any time, Steinhauser said, but they can generally only enter an insanity plea at arraignment.

An insanity plea also has a ripple of consequences for defendants. For instance, it subjects them to a court-ordered psychiatric evaluation, the results of which would be shared with prosecutors. The plea also waives much of the doctor-patient privilege the defendants enjoy. In Holmes' case, that means comments he made to his psychiatrist at the University of Colorado — including, possibly, a notebook he sent to her just before the shootings — could make their way into evidence.

The stakes are so high that attorneys typically seek out mental-health evaluations for their clients before entering an insanity plea.

"Defense attorneys have a lot of decisions to make," Steinhauser said.

That is one reason why insanity pleas are rare.

Dr. Steven Pitt, an Arizona-based forensic psychiatrist who works on cases across the country, said a mental defense is raised in only 1 percent of felony cases nationwide. It is successful only a quarter of the time, Pitt said.

To win an acquittal because of insanity in Colorado, defendants must clear three successively harder hurdles, Pitt said. First, they must prove they suffer from a mental illness. Second, they must prove that illness impairs their judgement.

Finally, they must prove that impaired judgement keeps them from distinguishing right from wrong. And Colorado law specifies that indifference to right and wrong is not the same as ignorance of it.

"That's going to be where the fight is," Pitt said.

Psychiatrists examining a defendant assemble as much information about his background as possible. They interview witnesses to the crime, colleagues and family members. They consult medical reports.

They spend hours — Pitt estimated as much as 16 hours — interviewing the subject. And they collect reports from staff members watching the defendant at the facility where he is held.

"These types of evaluations, they're not phoned in," Pitt said.

Those who are found not guilty by reason of insanity are committed to the state psychiatric hospital until they are well enough to be released — which may be never.

John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/john_ingold

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